This unit is premised on the fact that a person who receives any stolen goods has committed an offence known as receiving stolen goods. The commission of this offence pre-supposes the fact that there is already in existence stolen goods before such goods are received which results in the offence under discussion. This unit is arranged as follows:
CONTENTS 1.0 Introduction 2.0 Objectives 3.0 Main Content
3.1 Elements of the Offence 3.2 Receiving Dishonestly 3.3 Property Received
3.4 Element of Guilty Knowledge
3.5 Stolen Property Converted into other Property
3.6 Being in Possession of Goods Reasonably Suspected to have been Stolen.
4.0 Conclusion 5.0 Summary
6.0 Tutor-Marked Assignment 7.0 References/Further Reading
1.0 INTRODUCTION
The offence of stealing cannot be discussed properly without a follow up discussion on the offence of receiving stolen goods. The law here is that the goods received must first have been stolen before they are received with the knowledge that they are stolen goods.
2.0 OBJECTIVES
The objectives of this topic is to lead you, by way of teaching, into the realm of stealing as an offence and thereafter lay bare to you the offence of receiving stolen goods which cannot be committed in law unless stealing occurs first. At the end of this lecture, you will have a sound knowledge of the law regarding the subject matter.
At the end of this unit, you should be able to:
state and explain the law that relates to receiving stolen goods.
3.0 MAIN CONTENT 3.1 Elements of the Offence
The statutory provision for this offence is contained in 427 of the criminal code. In order to sustain the offence of receiving stolen goods, there are two basic elements that must be proved:
a. There must be receiving, and b. The goods must have been stolen.
To prove receiving, it is sufficient to show that the accused has either alone or jointly with some other person had the thing in his possession or has aided in concealing it or disposing of it. For this, see the 4th limb of section 427 of the criminal code.
Assuming, there is no aiding to conceal the property, for the accused to be connected, or convicted, it must be shown that he had the property in his possession. Possession can either be actual or constructive. Actual possession means being in physical possession of property, while constructive possession means holding it through a servant or other agent(s). The principal must have control over the property (thus excluding section 24). In other words, there must be control over the movement of the property.
See the case of Olujomoye v. R (1963) 3 WACA 71. This case deals with the elements of control. The accused must have control over the movement of the property. The case also deals with a joint possession between the receiver and the thief.
Where the receiver pays for the goods but the thief agrees to keep the goods, it is said in law that the receiver has constructive possession while the thief has physical or actual possession. If the thief has exclusive possession, the receiver cannot be said to have possession and thus cannot be charged for receiving. See R. v. Osakwe (1963). There are situations where the thief can also be charged with receiving the same goods alleged to be stolen by him within the context of the provisions of section 7 of the criminal code. See R. v. Saliba (1973) QDR 142.
3.2 Receiving Dishonestly
It is not sufficient to just receive, the accused must receive with dishonest intent i.e. the receiver knows that the goods have been stolen and intended to appropriate it to his own use or to the use of any person other than the owner. Okonkwo and Naish, in their book on Criminal Law, have agreed that this aspect of receiving dishonestly is not stated in section 427 of the criminal code but that it is implied in it. They support their argument with the English case of R. v. Matthews (1980) 1 All ER 137 at 138 per Lord Goddard.
3.3 Property Received
The property received must have been stolen or obtained by means of an act constituting or amounting to a felony or misdemeanour. A spouse of a Christian marriage cannot steal property belonging to her husband.
Thus another person cannot be guilty of receiving from her. See R. v.
Geamet (1919) 1 KB 564. Also a person cannot be charged with receiving a property purportedly stolen by a child of 7 years. See Walter v. Lint (1951) 2 All GR 645. See section 30 of the criminal code.
It is note worthy that it is not sufficient to show that the goods have been previously stolen, they must continue to be stolen goods at the time the accused person received them, and therefore the goods would cease to be stolen goods as soon as they are recaptured by the owner or by the police on his behalf. Any person who receives it thereafter is not guilty of receiving stolen goods. See R. v. Villensky (1892) 2 QB 597 and R. v.
King (1938) 2 All ER 622.
Section 429 of criminal code provides that if a stolen property passes to another person who acquires a lawful title, subsequent receiving of the goods will not amount to receiving stolen goods. A lawful title may be acquired by limitation or through a sale in market overt. Where a property is acquired from a market overt and the thief is convicted, the title in property reverts to the true owner.
3.4 Element of Guilty Knowledge
The prosecution must prove that at the time of receiving the goods, the accused knew that they were stolen or obtained by means of an act constituting a felony or misdemeanour. Guilty knowledge may be proved directly by way of confession or in any of the following ways:
1. By lies told by the accused person.
2. By any suspicious circumstance surrounding the transaction. For example, if the goods were sold secretly in the night or they are sold by a person who ordinarily would not have been in a position to sell them. Reference may be made here to the case of Lawani v. Police (1952) 20 NRL 87 or if they were sold at a price
197, or at a very low price, see Gfeller v. R. (1942) 9 WACA 12 (PC).
In view of section 47 of the Evidence Act, if a person is standing trial for receiving any property, known to have been stolen or for having in his possession, stolen property, in order to prove guilty knowledge, evidence will be led at any stage of the proceeding to show the following:
a. The fact that other property stolen, within the period of 12 months preceding the date of the offence charged, was found or had been in his possession.
b. The fact that within 5 years preceding the date of offence charged, he was convicted of any offence involving fraud or dishonesty.
Before leading evidence on (b) above against the accused, the prosecution must:
i. Give seven days notice in writing to the accused, stating therein that the proof of such previous conviction is intended to be given at the trial and
ii. Evidence has been given that the property in respect of which the offender is being tried was found or had been found in his possession.
It should be borne in mind that (ii) above is intended to be used as proof of guilty knowledge and not the fact of receipt.
Under the doctrine of recent possession as contained in section 149 of the Evidence Act, the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or he received the goods knowing them to be stolen, unless he can account for his possession. The doctrine of recent possession is not an evidence shifting device. The burden of proving guilty knowledge always remains on the prosecution and this doctrine does not operate to shift the burden of proof onto the accused. If the prosecution cannot prove its case against the accused beyond reasonable doubt, the accused is entitled to acquittal.
What amounts to recent possession in respect of the doctrine, depends on the circumstance of each case and the nature of goods. See the case State v. Aiyeola (1969) 1 All NLR 303. There is therefore no hard and
fast rule associated with it. See the case of R. v. Iyakwe (1944) 1 WACA 180.
3.5 Stolen Property into Another’s Property
Under Nigerian law, if a stolen property is converted into another’s property, then the accused cannot be guilty of receiving stolen goods.
Thus if A steals a sum of money and offers it to B who knowingly receives it, B is guilty of receiving stolen property. But the reverse will be the case if A uses the money to buy a television set and B receives it knowingly; in that case, B is not guilty of the offence of receiving stolen goods; the television set is not a stolen good. The money which is the stolen property has been converted into another property, i.e. television set.
On a comparative basis, in England, the law is that B in the above illustration, will be guilty of receiving stolen property even if the original goods (money) have been converted into the present goods received (television set). The same position applies in Australia (Queensland).
3.6 Being in Possession of Goods Reasonably Suspected to have been Stolen
This offence is criminalized in section 430 (1) of the criminal code and it states that any person who is charged before any court with having in his possession or under his control in any manner or in any place or that he at any time within three moths immediately preceding the making of the complaint, anything which is reasonably suspected of having been stolen or unlawfully obtained and he does not give an account to the satisfaction of the court as to how he came by the same, is guilty of an offence. One may quickly add here that section 430 (1) of the criminal code is designed to cover cases where at the time of arrest, the police cannot show that the goods were stolen but they reasonably suspect them to have been stolen or unlawfully obtained, it does not apply to any case where the goods are known to have been stolen and the owner is traced. See the case of Oguntolu v. Police (1953) 20 NLR 128. The suspicion expected from the prosecution is that of a reasonable man, warranted by facts from which inferences can be drawn: Boulos v. R (1954) 14 WACA 543.
As a result of the tendency by the police to abuse the provision of section 430(1) of the criminal code, it has been held that in order to avoid the visitation of hardship and mischief on innocent persons, its application should be done with the greatest caution in order to bring about the real intendment of the section. See case of R. v. Ayanshina (1951) 13 WACA 260.
4.0 CONCLUSION
The correct, complete name of this crime is “receiving stolen goods knowing it to have been stolen.” We showed in this unit that a person who commits this crime renders himself, at the same time, guilty of being an accessory after the fact to theft. You should understand that the crime can be committed only in respect of property that is capable of being stolen. For one to be liable for this offence, he must know that the property is stolen, or he must foresee the possibility that it may be stolen and reconcile himself to such possibility.
5.0 SUMMARY
The offence of receiving stolen goods is closely associated with the offence of stealing: first, the goods alleged to have been received must first be shown to have been stolen or illegally obtained. Secondly, the goods must be sold and received not in a proper place (market overt) but secretly and sometimes at a derisive price.
The receipt of the stolen goods must be done dishonestly.
Guilty knowledge could be proved by way of lies told by the accused person and by suspicious circumstances surrounding the transaction
Section 430 (1) of the criminal code relating to being in possession of goods reasonably suspected to have been stolen should be treated with considerable caution.
6.0 TUTOR-MARKED ASSIGNMENT
1. What do you understand by the doctrine of recent possession 2. Assuming you are the prosecution in a case of receiving stolen
goods, how would you prove guilty knowledge in order to secure the conviction of the accused person?
3. The learned authors Okonkwo and Naish are of the opinion that section 430 (1) of the criminal code should be relied upon the police with caution. Do you agree?
7.0 REFERENCES/FURTHER READING
Okonkwo C. O & Naish (1990). Criminal Law in Nigeria. Ibadan:
Spectrum Law Publishing.
Smith & Hogan Criminal Law.
Glanville Williams Textbook of Criminal Law.